Egued v. Postmaster General of U.S. Postal Service , 155 F. App'x 439 ( 2005 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
November 17, 2005
No. 05-10742 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 03-21967-CV-CMA
MANUEL EGUED,
Plaintiff-Appellant,
versus
POSTMASTER GENERAL OF
U.S. POSTAL SERVICE,
Jack Potter,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(November 17, 2005)
Before MARCUS, WILSON and PRYOR, Circuit Judges.
PER CURIAM:
Manuel Egued, a Cuban Hispanic, appeals the summary judgment granted in
favor of the Postmaster General and against his claims of racial and national origin
discrimination in violation of Title VII. 42 U.S.C. § 2000e, et seq. Egued was
fired from his job with the United States Post Office following an investigation
against him for sexual harassment. The district court granted summary judgment
in favor of the Postmaster General because it determined that Egued failed to
establish a prima facie case of discrimination. We affirm.
I. BACKGROUND
Egued began work for the Post Office as a letter carrier in 1981. In 1993,
Egued was promoted to the position of Supervisor, Customer Service, and, in
1997, Egued was transferred to the Snapper Creek branch of the Post Office. In his
position, Egued supervised approximately 120 employees.
On December 18, 2002, Virginia McGinnity, the acting manager of
customer service operations, issued Egued a “Notice of Proposed Removal.” The
notice informed Egued that allegations of inappropriate conduct had been made
against him and an investigation had been conducted that showed that Egued
“engaged in unacceptable conduct that served to create a hostile work environment
for four female letter carriers in the Snapper Creek Branch” between November
2000 and June 2001. The notice provided a summary of the allegations made by
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the four letter carriers. Egued responded in writing and in person. Egued’s
responses were found inadequate and he was discharged based on a finding that he
had sexually harassed other employees.
Egued appealed the decision to the Merit Systems Protection Board, which
held a hearing in Egued’s case. After the hearing, the judge found the witnesses
against Egued credible and found Egued not credible. The Board upheld the
removal.
Egued filed a discrimination suit in the Southern District of Florida and
alleged that he was discriminated against on account of his race and national
origin. Egued alleged that non-Hispanic or non-Cuban similarly situated
employees were disciplined less harshly than he was. The district court granted
summary judgment because it found that Egued failed to identify a similarly
situated employee.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo. Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004). Summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
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judgment as a matter of law.” Fed. R. Civ. P. 56(c). When reviewing the record,
“we view the evidence in the light most favorable to the non-moving party.”
Wilson, 376 F.3d at 1085.
III. DISCUSSION
A case for discrimination can be proved with either direct or circumstantial
evidence. See id. at 1085-91. Egued does not argue that his complaint is
supported by direct evidence of discrimination. We, therefore, address whether
Egued presented circumstantial evidence of discrimination.
To establish a prima facie case of discrimination under a disparate treatment
theory, an employee must show that “[he] was a qualified member of a protected
class and was subjected to an adverse employment action in contrast with similarly
situated employees outside the protected class.” Id. at 1087. If the plaintiff
establishes a prima facie case, the defendant must then “articulate a legitimate,
nondiscriminatory reason for its actions.” Id. “If the employer satisfies its burden
by articulating one or more reasons, then the presumption of discrimination is
rebutted, and the burden of production shifts to the plaintiff to offer evidence that
the alleged reason of the employer is a pretext for illegal discrimination.” Id.We need not consider the last two steps in this burden shifting analysis
because Egued cannot establish a prima facie case. The Postmaster concedes that
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Egued is a member of a protected class and was subject to an adverse employment
action. Egued cannot identify, however, a similarly situated employee who was
disciplined less harshly than he was.
On appeal, the only employee advanced by Egued as being similarly situated
is Wayne Brown, the Manager of Customer Services for the Post Office in another
branch. Brown is an African-American. In 2004, allegations of improper conduct
of Brown were investigated, and Brown was then permanently reassigned out of
his work location. Egued argues that the allegations against Brown were
substantially similar and of comparable seriousness to the allegations made against
him.
An employee is similarly situated if they are “‘involved in or accused of the
same or similar conduct[.]’” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d
1313, 1316 (11th Cir. 2003) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997). Comparators must be “similarly situated in all relevant respects,”
Knight, 330 F.3d at 1316, and the “quantity and quality of the comparator’s
misconduct [must] be nearly identical to prevent courts from second-guessing
employers’ reasonable decisions and confusing apples with oranges.” Maniccia v.
Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999).
Brown is not similarly situated to Egued. The allegations against Brown, on
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the one hand, were dominated by complaints, by both men and women, regarding
Brown’s conversations and comments to his subordinates. Only one individual
accused Brown of uninvited sexual touching. The allegations against Egued, on
the other hand, involved complaints by four women of severe and ongoing sexual
harassment, including both verbal harassment and repeated uninvited sexual
touching. Because Egued’s alleged conduct was substantially more serious than
Brown’s conduct, the two were not similarly situated and the less harsh discipline
of Brown was not circumstantial evidence of discrimination.
IV. CONCLUSION
We affirm the summary judgment for the Postmaster General.
AFFIRMED.
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